[25-406] Federal Communications Commission v. AT&T, Inc.

The FCC imposed more than one hundred million dollars of civil penalties on AT&T and Verizon, and the companies had no way to demand a jury trial.

That's a straightforward violation of the Seventh Amendment and this Court's decision in Jarkasi.

The government's only answer is that the penalties weren't binding.

They were just invitations to pay one hundred million dollars if you want, and that's wrong for at least four reasons.

First, the statute says that the FCC issues a charging document, considers the party's response, and then assesses and imposes penalties.

That's not voluntary language.

Second, it's the same language Congress has used in many statutes, including the SEC statute in Jarkasi, and the government has never claimed it is voluntary.

Third, there's an alternative procedure by which the commission itself or an ALJ can assess and impose penalties, same statutory language.

The government appears to accept that type of forfeiture order is binding.

And fourth, it's not how the FCC has read the statute for decades.

Its regulation and guidance treat forfeiture orders as binding.

These orders are exhibit A.

In bold capital letters, they command payment by a particular date.

If the government were right about the statute, it would just walk them into a constitutional problem.

They want these forfeiture orders because they know that legitimate parties pay one hundred percent of the time.

If your main regulator says that you are violating the law, you can't let that hang over your head indefinitely.

But to guarantee any judicial review, AT&T and Verizon have to give up the right to a jury trial.

It is hard to imagine a clearer case of penalizing the exercise of a fundamental constitutional right.

I welcome the Court's questions.

Well, Mr.

Wall, if the government has, uh, maintained the argument that it did below, uh, you would have a good point, but the government seems to have walked away from that argument.

Uh, if we assume that the government now is taking a position that does not require the, uh, s- uh, does not in- involve the Seventh Amendment, what do we do with your case if we also think that, uh, the approach that it took in your case did involve the Seventh Amendment or implicate the Seventh Amendment?

So I would say a couple of things, Justice Thomas.

First, I, I think you've got to agree with them on the statute.

You've got to agree that no matter what they try to disclaim, that the statute actually doesn't make these things binding, though it uses binding language and though every statute cited in Justice Sotomayor's Jarkasi dissent uses the same language, determine, assess, and impose penalties.